Zhenli Ye Gon v. Lynch ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ZHENLI YE GON,
Petitioner,
v. Civil Action No. 15-1970 (JDB)
LORETTA LYNCH, et al.,
Respondents.
MEMORANDUM OPINION & ORDER
In 2011 a magistrate judge in this district issued a certificate of extraditability approving
the proposed extradition of Zhenli Ye Gon from the United States to Mexico. Since then, Ye Gon
has launched a variety of legal efforts to forestall his extradition. This latest attempt takes the form
of what Ye Gon styles a “Petition for Writ of Error Coram Nobis.” The Court will dismiss this
petition because there is no authority to suggest that coram nobis relief is available under these
circumstances.
A streamlined history of Ye Gon’s various proceedings will suffice for present purposes.
In 2008 the government of Mexico asked the United States, pursuant to the nations’ extradition
treaty, to extradite Ye Gon to face drug-related criminal charges in Mexico. Ye Gon was then
being held in the District of Columbia in connection with a U.S. criminal case, so the United States
filed an extradition complaint in this Court. Pursuant to 18 U.S.C. § 3184, Magistrate Judge John
Facciola held a hearing to consider whether the foreign charges were supported by probable cause
and extradition was otherwise legally proper. In early 2011 he concluded that these requirements
were met and issued a certificate of extraditability. In re Zhenley Ye Gon, 768 F. Supp. 2d 69(D.D.C. 2011).
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A decision granting a certificate of extraditability is not subject to direct appeal. Ahmad
v. Wigen, 910 F.2d 1063, 1065 (2d Cir. 1990). “An extraditee’s sole remedy from an adverse
decision is to seek a writ of habeas corpus . . . .” Id. This Ye Gon promptly did, filing a habeas
petition in the District Court for the Western District of Virginia, where he was (and still is) being
held. Ye Gon’s petition raised a variety of arguments, including that the District Court in D.C.
had lacked jurisdiction over him, that his extradition was inconsistent with the applicable
extradition treaty in various ways, and that Judge Facciola’s probable cause finding was factually
unsupported. In January 2014, the District Court rejected Ye Gon’s arguments and denied habeas
relief. Zhenli Ye Gon v. Holder, 992 F. Supp. 2d 637 (W.D. Va. 2014). The Fourth Circuit
affirmed that decision, Zhenli Ye Gon v. Holt, 774 F.3d 207 (4th Cir. 2014), and the Supreme
Court denied certiorari, Zhenli Ye Gon v. Aylor, 135 S. Ct. 2859 (2015).
In August 2015, Ye Gon filed a second habeas petition in the Western District of Virginia,
raising a new raft of arguments. In short order the court denied that petition as well. Zhenli Ye
Gon v. Dyer, 2015 WL 6026278 (W.D. Va. Oct. 9, 2015). Ye Gon appealed that decision, and his
appeal is currently pending before the Fourth Circuit, which has stayed his extradition until it
reaches a decision. Order, Zhenli Ye Gon v. Dyer, No. 15-7620 (4th Cir. Nov. 10, 2015).
In October 2015, Ye Gon’s legal battle against extradition returned to this district. On Ye
Gon’s behalf, attorney Ning Ye filed what he called a “Petition for Writ of Error Coram Nobis” in
the extradition case originally overseen by Judge Facciola, Miscellaneous Case No. 08-596. Ning
Ye had represented Ye Gon in the early phases of the extradition case, but Ye Gon had fired him
in 2009. When Ning Ye nonetheless continued to submit filings in the extradition case, Judge
Facciola was forced to order that the Clerk of the Court not accept any further filings from him in
that case. As a result, when Ning Ye filed the coram nobis petition in October 2015 without first
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seeking permission to file it, the United States moved to strike. Magistrate Judge Harvey, to whom
the case had been reassigned after Judge Facciola’s retirement, granted the Government’s motion
and struck the petition. Rather than requesting a modification of the order barring him from filing
anything in the original case, Ning Ye refiled the petition in a new case—this one—which was
assigned to a new judge—the undersigned. This procedural maneuvering is unusual, perhaps
inappropriate, and maybe even an independent reason to dismiss this petition. But the Court need
not resolve whether refiling was improper, because the petition plainly fails for other reasons. (An
“Authorization” attached to the petition and signed by Ye Gon indicates that he has in fact rehired
attorney Ning Ye.)
Ye Gon’s petition is a long, confusing document that the Court cannot easily summarize.
Among other things, it argues that newly discovered evidence undermines the probable cause
finding that underlies the certificate of extraditability; that the request for extradition violates the
U.S.-Mexico treaty; that Ye Gon’s criminal defense counsel of years ago provided ineffective
assistance; and that the Mexican government has committed a wide range of malfeasance. The
Court will not examine any of these contentions, because Ye Gon has failed to rebut the
Government’s compelling argument that coram nobis relief is simply not available here.
As the Government notes in its motion to dismiss, a writ of error coram nobis is available
in only very limited circumstances. Historically, “the purpose of coram nobis [was] to bring to the
court’s attention some fact which was unknown to the court, and if known, would have resulted in
a different judgment. It was designed, not by legislation, but by the judiciary to meet certain
extreme exigencies of justice.” Ex parte Atkinson, 84 F. Supp. 300, 303 (E.D.S.C. 1949). The
writ has since been expressly abolished in civil cases. Fed. R. Civ. P. 60(e); United States v.
Morgan, 346 U.S. 502, 505 n.4 (1954). It lives on in criminal cases, but is rarely available. A
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court may issue it only in “ ‘extraordinary’ cases presenting circumstances compelling its use ‘to
achieve justice.’ Another limit . . . is that an extraordinary remedy may not issue when alternative
remedies, such as habeas corpus, are available.” United States v. Denedo, 556 U.S. 904, 911
(2009) (quoting Morgan, 346 U.S. at 511). The writ has only one modern role that this Court is
aware of: as a mechanism for vacating the erroneous criminal conviction of a petitioner “who is
no longer ‘in custody’ and therefore cannot seek habeas relief under 28 U.S.C. § 2255 or § 2241.”
Chaidez v. United States, 133 S. Ct. 1103, 1106 n.1 (2013); see, e.g., Korematsu v. United States,
584 F. Supp. 1406 (N.D. Cal. 1984).
Ye Gon offers no authority indicating that a writ of error coram nobis is available here. To
start, he cites no authority to suggest that the writ can ever be used to vacate a certificate of
extraditability, which is not a criminal judgment. Ward v. Rutherford, 921 F.2d 286, 287 (D.C.
Cir. 1990) (noting that “an extradition hearing is not the occasion for an adjudication of guilt or
innocence,” but is instead “essentially a preliminary examination” (internal quotation marks and
brackets omitted)); see also In re Extradition of Howard, 996 F.2d 1320, 1325 (1st Cir. 1993)
(judge or magistrate presiding over extradition hearing “is not exercising any part of the judicial
power of the United States” (internal quotation marks omitted)). Even if the writ sometimes could
be used in the extradition context, its use would be inappropriate here because Ye Gon is “in
custody” within the meaning of 28 U.S.C. § 2241, and thus the alternative remedy of habeas corpus
is available. Indeed, Ye Gon is in the midst of pursuing precisely that remedy in the Fourth Circuit.
Hence, because that avenue of potential relief remains open, the “extraordinary remedy” of coram
nobis “may not issue.” Denedo, 556 U.S. at 911.
In the face of the Government’s clear and persuasive argument that coram nobis is
unavailable, Ye Gon’s opposition to the motion to dismiss offers nothing of value. Ye Gon does
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not engage with any of the relevant case law or provide any apposite authority. Instead, he simply
rehashes at great length the numerous substantive grounds on which he objects to the issuance of
the certificate of extraditability and his impending extradition. But in the absence of any
mechanism through which this Court could properly provide relief, all of these objections are
irrelevant. The Court will therefore grant the Government’s motion and dismiss this action.
ORDER
For the foregoing reasons, it is hereby
ORDERED that [6] the Government’s motion to dismiss [1] Ye Gon’s petition for writ of
error coram nobis is GRANTED; it is further
ORDERED that [1] Ye Gon’s petition for writ of error coram nobis is DISMISSED; and
it is further
ORDERED that [2] Ye Gon’s emergency motion for a stay of extradition, [4] motion for
leave to conduct limited discovery, and [5] motion for default judgment are DENIED.
SO ORDERED.
/s/
JOHN D. BATES
United States District Judge
Dated: April 7, 2016
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